Tusitino v. O'Malley ( 2024 )

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Saimalo T., Plaintiff(s), 2:24-cv-01241-MDC 4 vs. 5 Martin O'Malley, Commissioner of Social ORDER GRANTING APPLICATION FOR Security, LEAVE TO PROCEED IN FORMA 6 PAUPERIS FOR SOCIAL SECURITY Defendant(s). APPEAL (ECF NO. 1) 7 8 9 Plaintiff Saimalo T. filed a social security appeal and an application for leave to proceed in 10 forma pauperis (IFP). ECF No. 1-1. Plaintiff is represented by counsel. The Court grants plaintiff’s IFP 11 application. 12 I. WHETHER PLAINTIFF MAY PROCEED IN FORMA PAUPERIS 13 Plaintiff Saimalo T. asserts in his application to proceed in forma pauperis that he is currently 14 unemployed and is supported by his spouse who makes $2,800 a month in take-home pay. ECF No. 1. 15 He states that they have about $2,698 a month in expenses and that his spouse has $75.00 in her bank 16 account. Id. Plaintiff’s request to proceed in forma pauperis is granted. 17 II. WHETHER PLAINTIFF’S COMPLAINT STATES A PLAUSIBLE CLAIM 18 A. Legal Standard 19 Upon granting a request to proceed in forma pauperis, a court must additionally screen a 20 complaint pursuant to § 1915(e). Federal courts are given the authority to dismiss a case if the action is 21 legally “frivolous or malicious,” fails to state a claim upon which relief may be granted or seeks 22 monetary relief from a defendant who is immune from such relief. See § 1915(e)(2). “To survive a 23 motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to 24 relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and 25 1 citation omitted). 2 In considering whether the plaintiff has stated a claim upon which relief can be granted, all 3 material allegations in the complaint are accepted as true and are to be construed in the light most 4 favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). When a court 5 dismisses a complaint under § 1915(e), the plaintiff should be given leave to amend the complaint with 6 directions as to curing its deficiencies, unless it is clear from the face of the complaint that the 7 deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 8 1995) (citation omitted). 9 B. Complaint 10 Plaintiff’s complaint arises from an unfavorable decision by the Commissioner of Social Security 11 Administration. ECF No. 1-1. Plaintiff asserts that he is disabled as that term is defined in the Social 12 Security Act, and that he filed an application for disability insurance benefits. Id. The Commissioner 13 denied the application. Id. He argues that the Administrative Law Judge denied his claim for benefits. Id. 14 at 2. Plaintiff has appealed the decision of the Commissioner to this Court. Id. 15 Plaintiff may appeal to this Court the Commissioner’s denial of his application for Disability 16 Insurance Benefits under Title II of the Social Security Act. See 42 U.S.C. §§ 401-433. This court has 17 jurisdiction over the matter. Id. Construing plaintiff’s allegations in the light most favorable to plaintiff, 18 the Court finds that plaintiff has asserted a claim upon which relief can be granted. See Russell, 621 F.2d 19 at 1039. 20 IT IS ORDERED that: 21 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 1) is GRANTED. Plaintiff is 22 permitted to maintain this action without the necessity of prepayment of fees or costs or the 23 giving of security. 24 2. The Clerk of the Court is directed to file the complaint (ECF No. 1-1). The complaint shall 25 be served on the Commissioner in accordance with Rule 3 of the Supplemental Rules for 1 Social Security Actions under 42 U.S.C. § 405(g). 2 3 DATED: August 2, 2024. 4 IT IS SO ORDERED. 5 6 _________________________ Hon. Maximiliano D. Couvillier III 7 United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25